CUE or EED for undecided foot exam

[Andyman73]

hello all, I finally got it figured out.  Here is the info that I eluded to on a different thread refering to EED.

I found this in my C-file while searching for info for a different contention.  I had a exam this past summer and was rated 30% for pes cavus w/planar fasciitis, bilateral.  Does this qualify for a CUE or EED?  There is no decision regarding the foot exam.

MED VA GOV DATE OF EXAM APR 17 2006

GENERAL REMARKS

The veteran is claiming an Increase in residuals of a Left ankle injury please provide current symptoms including painless range of Motion In degrees for the condition noted above also note if there is additional loss of motion or fatigability with repetitive movement

REVIEW OF MEDICAL RECORDS

C-file was not available for review Medical documents regarding Veteran dating back to April 13 2005 until present day have been reviewed

MEDICAL HISTORY This is a 32-year-old male who is service connected for a left ankle injury sustained while serving in the United States Marines  fall/winter of 1997 following initiation of a new exercise regimen for Physical fitness during his active military career He was attached to a reserve unit at Willow Grove and began a new exercise regimen following what the veteran States was a more sedentary lifestyle Upon medical evaluation the veteran was recommended to do stretching exercises prior to his exercise routine and Was given a prescription for Motrin for pain He denies any long term Modification in his profile for physical fitness He does relate short duration of light duty for a couple of months and at one point was excused from the running portion of his PT testing. As of May 25 2005  has been followed in the Podiatry Clinic for left arch pain with a diagnosis of calcaneal spur syndrome left foot and has been treated with steroid injections custom molded Inserts night splints and oral nonsteroidal anti-inflammatoray agents.

1 The veteran complains of pain including burning and tingling to the Plantar aspect of the heel and pain along the plantar arch of the left foot Symptoms are aggravated with the extending walking and standing especially during work He complains of stiffness to the lateral aspect of the ankle which occurs Upon initial weight bearing following periods of rest as well as with extended standing and walking The veteran also experiences tingling sensations to the hallux of the left foot with no aggravating factors His left hallux paresthesias have been occurring shortly following a steroid injection to the left heel which was performed on May 25 2005. He denies any swelling heat or redness to the left foot or ankle He denies any sensations of instability or giving way or locking sensation of the left ankle He does experience Some fatigue and lack of endurance to the left foot and ankle which is directly proportional to the degree of pain experienced This fatigue limits his desired amount of ambulation which has affected his work and social life Veteran complains of a limp at the end of his work day secondary to his Pain along the plantar aspect of the left foot and heel.

2

Currently the veteran is utilizing Naproxen which provides approximately 4 to 5 hours relief with each dose He has attempted the use of Gabapentin in The past for the burning sensation to the left great toe which he Discontinued secondary to alterations in his sleeping pattern The veteran is utilizing a pair of custom orthotics which does provide some arch and heel pain relief and some stability to the left ankle With his current orthotics he has noted significant early wear of the padding following use.

3 The veteran denies any periods of flare up of joint disease however the longer he stands on his feet the more aggravating his foot symptoms become.

4 Vet denies the use of crutches braces canes or corrective shoe gear

 

5 Vet denies any surgery or injury to the left foot following his active military career Mr Thompson relates in suffering a fracture to the first metatarsal of the left foot secondary to dropping a manhole cover on his foot which is not related to his military career.

6 There are no episodes of dislocation or recurrent subluxation as per the patient

7 There is no relationship of Inflammatory arthritis regarding the patient's claim of service connection

8 Describe the effects of the condition on the veteran's usual occupation and daily activities Vet is currently working as an assistant bindery operator binding small magazines and books spending approximately 8-12 hours a day on his feet His left foot and ankle pain is aggravated with the weight bearing required and is most severe during the end of the day Veteran does perform activities of daily living unassisted Left foot and ankle pain limits the veteran from participating in desired sporting and physical fitness activities

9 Right hand dominant as per the patient though he is left handed with sporting activities

10 The veteran does not utilize a prosthetic device though he does utilize custom inserts and recently has been dispensed (April 10 2006) a pair of custom accommodative orthotics He is unable to honestly comment the response of these Inserts since he is in the break in period of use of these devices. The veteran has utilized posterior night splints in the past which have Provided increase in flexibility to the ankle joint bilaterally

PHYSICAL EXAMINATION VASCULAR Dorsalis pedis and posterior tibial pulses are palpable Bilaterally There is no swelling noted to the foot or ankle bilaterally Skin temperature is warm to cool tibial tuberosity to digits one through five bilaterally equal and symmetrical Positive dorsal hair growth is noted to the foot and ankle bilaterally

NEUROLOGICAL Sharp/dull discrimination is diminished to the hallux bilaterally as well as to the second through fourth digits of the right foot Vibratory sensation is grossly intact, equal and symmetrical bilaterally. Protective threshold is intact with the patient able to perceive the Semmes Weinstein 5 07 monofilament bilaterally Deep tendon reflexes is +2/4 bilaterally.

DERMATOLOGICAL Skin integrity is intact to the foot and ankle bilaterally There is mild hyperkeratosis along the plantar medial aspect of the interphalangeal joint of the hall bilaterally No signs of local infection are noted Skin color is within normal limits with no ecchymosis or erythemanoted to the foot bilaterally

MUSCULOSKELET Left ankle joint range of motion is 14 degrees of dorsiflexion and 34 degrees of plantar flexion which is nontender and without crepitance upon passive and active range of motion Subtalar joint range of motion is 20 degrees of inversion and 10 degrees of eversion bilaterally Subtalar joint right foot nontender and without crepitus upon passive and Active range of motion against resistance For the left foot end inversion of the subtalar joint elicits pain of 3-4 on a scale of 0-10 at the region of the along sinus tarsi Pain of 8 on a scale of 0 to 10 is elicited with direct compression of the sinus tarsi left foot right foot is nontender with similar examination Pain with direct compression of the anterior talofibular ligament is a 6 to 7 on a scale of 0 to 10 on the left ankle Right ankle is nontender with similar examination The calcaneofibular ligament and posterior talofibular ligament are nontender to compression bilaterally There is a negative anterior drawer noted bilaterally and no subluxation of the peroneal tendons with forced inversion eversion plantar flexion and dorsiflexion of the foot and ankle bilaterally Manual muscle strength is +5/5 for the extrinsic dorsiflexors, plantarflexors, invertors and evertors of the foot bilaterally. Pain is elicited with direct compression of the medial tubercle of the left calcaneus The pain is Also elicited with direct compression of the medial and central bands of theplantar fascia of the left foot Right foot is nontender with similar examination There is no lateral bowing of the achilles tendon bilaterally Relaxed calcaneal stance position is 2 degrees everted on the left and 3 degrees Everted on the right Medial arch is maintained during relaxed calcaneal stance bilaterally First metatarsal phalangeal joint range of motion is limited with the left foot measuring 20 degrees of dorsiflexion and 35 degrees of plantar flexion and the right foot measuring 46 degrees of dorsiflexion and 28 degrees of plantar flexion Range of motion is increased as compared to his examination on August 1 2005 Passive range of motion of the first metatarsal phalangeal joint is nontender and without crepitance bilaterally Negative Tinel's sign with percussion of the tarsal canal bilaterally Gait analysis reveals a propulsive coordinated gait which is non antalgic Ani nverted heel strike is noted bilaterally Pronation is noted through the stance phase of gait with resupination noted prior to heel off No early heel off is noted bilaterally Medial longitudinal arch is maintained during The stance phase of gait Symmetric arm swing is noted bilaterally No signs of fatigue are visualized.

Imaging  There are no recent views of the left foot however there are prior views taken 4/27/2005 which demonstrate normal bone and soft tissue Densities Lateral view of the left foot demonstrates an elevated calcaneal inclination Angle measuring 28 degrees There is mild spurring to the inferior aspect of the calcaneus as well as enthesis along the posterior aspect of the calcaneus No signs of fracture or dislocation noted No radiographs of the left ankle are available for review An MRI of the left foot performed 3/14/2006 reveals no space occupying lesions within the tarsal tunnel or evidence of a Morton s neuronal There is notation of degenerative changes of the first metatarsal phalangeal joint of the left foot.

IMPRESSION

1  Chronic Sinus tarsitis left foot with history of chronic left ankle pain.

2 Calcaneal spur syndrome left foot

3 Pes cavus deformity bilaterally

4 Hall limitus bilaterally

5 Pinch callus hallux bilaterally

6 Possible neuritis of the medial plantar nerve left foot

7 Sensory peripheral neuropathy

COMMENTS This is a 32-year-old male service connected for chronic left ankle pain The veteran has a history of left ankle pain aggravated with running, marching and hiking activites performed during active military duties His current complaints of plantar heel and arch pain and lateral foot pain (calcaneal spur/sinus tarsiitis) are at least as likely as not related to the physical Requirements performed during his active military career compounded by his cavus foot structure There veteran suffers from paresthesias to the left hallux which began shortly following a corticosteroid injection for his left heel symptoms which is a possible complication with such treatment however it may also be related to his arthritic condition to the great toe joint Veteran Demonstrates sensory neuropathy to the right hall though nonsymptomatic Though it may be conincidental it is at least as likely as not that his neuritic pain to the left great toes is related to the treatment provided for his left heel pain His bilateral hallux limitus condition and assocaited callus to the great toe bilaterally is not related to the left ankle condition

DeLuca provisions can not be evaluated with medical certainty Though I do not appreciate a decrease in range of motion secondary to pain the veteran may suffer a mild decrease in painless range of motion to the subtalar joint and ankle joint of the left foot with repetitive active range of motion with prolonged walking and standing Reduction of range of motion depends onThe level of discomfort/pain experienced at such time Clinically I do not appreciate any level of incoordination in gait.

/

PODIATRIST

Signed 04/24/2006

08 47

Rating Decision May 18, 2006

INTRODUCTION The records reflect that you are a veteran of the GulfWar Era You served in the Marine Corps from November 16, 1992 to November 15 1998 You filed a claim for increased evaluation that was received on March 2 2006 Based on a review of the evidence listed below we have made the following decision(s) on your claim

DECISION

1 Evaluation of low back strain which is currently 10 percent disabling is continued

2 Evaluation of bilateral patellofemoral pain syndrome which is currently 10 percent disabling is continued

3 Evaluation of residuals of a left ankle injury which is currently 10 percent disabling is continued A 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints This disability is not specifically listed in the rating schedule therefore it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms are closely related Medical records from the VA Medical Center show that you have complaints of pain of the arch, chronic impairment involving the left ankle which warrants a higher evaluation was not noted

Objective examination findings show that you have painless range of motion measured asdorsiflexion of 0 to 14 degrees which is 6 degrees less than no al and plantar flexion of 0 to 34 which is 11 degrees less than no al The right ankle was noted as nontender and without crepitance upon passive and active range of motion The subtalar joint range of motion is 20 degrees of inversion and 10 degrees of eversion bilaterally Manual muscle strength is +5/5 for the extrinsic dorsiflexors plantar flexors mvertors and evertors of the left foot Pain was elicited with direct compression of the medial tubercle of the left calcaneus The pain is also elicited with direct compression of the medial and central bands of the plantar fascia of the left foot Under DeLuca v Brown inquiry has been made as to whether in addition to limitation Of motion there is increased disability due to any weakened fatigability incoordination or painful motion as a result of your service connected left ankle injury This rating includes an assessment of any such increased disability in terms of the criteria for measurable limitation of motion in the Schedule for Rating Disabilities Our letter of March 14 2006 requested that you provide evidence which shows that your condition has increased in seventy To date no such evidence has been received In the absence of evidence which shows that your residuals of a left ankle injury has increased in seventy based on the cntena noted above the 10 percent evaluation is continued

Edited October 24, 2015 by Andyman73

[Andyman73]

Bunch of lookers, but no takers, eh?  No one wants to go first?  Give it to Mikey, he'll try anything!  No?  Ok

[Guest]

The Crazy one here, not getting in the particulars but if you had an exam this summer followed by a rating decision then this claim is not ripe for a CUE. A CUE claim comes one (1) year after a decision.  You are still within your appellant rights to file a NOD for the EED.  What information change from your prior decision until this last decision. I am not familiar with foot ratings so maybe others will chime in. As I said in another post if you feel that VA made a mistake you can file a CUE claim on the older claim and a NOD on this new claim but it is a lot easier to just file a NOD claims.  By filing a CUE claim you give up the benefit of doubt (BOD) and most likely lose the claim but you may be able to win a NOD.

Best wishes

[Andyman73]

Ok, then, no cue.  That was my main question.  I was thinking maybe EED, since it was written at least as likely as not.  Any advice for me on filing my NOD for this?  Thanks

Semper Fi

Andyman

[broncovet]

It sounds like, since you got your decision this summer, this is ripe to appeal the decsion for an eed, and submit this C and P exam.  

It looks like a classic  case of VA top sheeting you, where they did not read the old exam.  

I do not think Cue is necessary or indicated here.  You simply file a NOD disputing the effective date and submit this exam as evidence in the event that VA shredded this exam, since they could have lost it, or they just did not read it.  Both happens frequently.

Whenever possible, you do NOT want to create a CUE, when a conventional appeal will do.  The reason is you "raise the bar" for yourself, because CUE is a "standard of review".  The CUE standard of review makes it more difficult for you.  You have to make it "undebatable", without submitting new evidence, and the error must be outcome determinative based on the evidence and laws at the time.  

Its truly a high bar to jump over.  

Jump over a lower bar instead, and make it easier for your self.  By filing a NOD, you dont have to jump over "undebatable", you need only jump over "benefit of the doubt".  

CUE is generally used when YOU do not appeal within the 12 month period.  Since you are still in the appeal period, the obvious choice is to make it easy on yourself and file a NOD appealing the effective date.  

I currently have an appeal for effective date and other issues.    This exam is evidence that you met the criteria in 2006, not much later.  When did you apply the first time? 

I ask this because the VA can hardly say you applied in 2014, not with this exam in the file.  Did the VA order a C and P exam for an issue which you did not apply?  No, they wont admit to that error.  You had to have applied before this 2006 C and P exam.  

The reason I mention all of this is that you may be eligible for an effective date even before 2006.  Why?  Your effective date is the later of the date you applied or the facts found, ( not the date of the C and p exam).  

The C and P examiner examined your records.  You did not get this disease when you walked into the C and P exam.  Never.  You had it before then.  You probably had it when you applied, or else you would have never applied.  I bet you didn't say, "Ok, I predict I will get plantar fasciatis in 2 years, in 2006, and will apply for it now (2004) so when I get it, I will get benefits."  

No.  You applied for plantar fasciatis because you had symptoms of the disease.  You may not have had a diagnosis yet, but you still had the disease.   Is it your fault it took the VA 2 years to do a c and p exam?  No.  You not only suffered from the symptoms of the disease, but you also had to suffer the VA making you wait another 2 years to even do an exam.  Worse, they did an exam, and never bothered to adjuticate it, and did another exam years later, and used the new exam for the effective date.  

I dont often see "slam dunk" eed's, but how can the VA refute this?  You have the evidence.  Their doc did the exam in 2006, so they cant just shred your application and say, "oh he did not apply until 2014".   No.  They can not explain why they did a 2006 exam if you did not apply until 2014.  

[Andyman73]

Broncovet,

I know I wrote a letter, asking for a C&P exam for my foot/feet since the pain and suffering were getting worse, in February of 2006.  This exam was  2 months later, in April.  When I went through my initial exams, a few months before my EAS, they did examine my L ankle, and gave me 10%, dated the month of my EAS...11/98.  The exam took place less than a year after I developed the plantar fasciitis.  And in fact the recent examiner SC the contention based on treatment records from early in 1998!!!

When I went through the exam posted above, they also did exams on my ankle, lower back and knees.  Even though I had not included them in my foot request letter.  The VA took it upon itself to do so.

As for CUE, I just wanted someone with knowledge and experience to say yay or nay, and both you and pete992 said no way, go the NOD way.  I didn't know which way was best, and now I do.

As for before that, I only have exams for my knees dating back to 2000, when I was was going round and round before getting lowballed at 10% for them.  My C-file does not contain the exam reports from 1998 that I went through while still on AD.

It's already making me physically ill thinking of how my life could have been different if this had been adjucated back in '06.  My wife wanted a 3rd baby, but $ was so tight we couldn't afford it.  Now we can, but after several years of trying, no baby.  The stress from that has nearly driven me to suicide( I started MH treatment at my VAMC this past summer for it).  And the amount of $ this possibly represents would have been life changing back then.  All the personal sacrifices I've made so my wife had $ to care for our 2 kids, I've been mowing lawns for some of my elderly neighbors just to earn gas $, for the past 6 years.  I gave up all my hobbies, too, which did nothing to relieve my stress, and have worked as much overtime I physically could handle, which I'm paying for now.

And because of that, I have no friends, due to lack of time to develope any outside of casual work buddies.  On top of that, I think of how much NSAIDs I have taken over the past 23 years, even more so in the past 10 years, how it has effected my health, just so I could do just a little bit more.  I've been driving hand me downs from my wife, cuz we couldn't afford to replace 2 cars, so we dumped my old ones, and got her newer ones(updated safety features for her and kids), and I took hers.

I'm sure lots of folks may think what am I complaining about, cuz I have what I have...it's the knowledge that it could have been different, but the VA screwed me royally all those years ago.  And while the $ will make my wife happy, it won't give her the baby she's wanted for 8 years now...that I can't give her anymore, either.

I appreciate your advice and guidance, I will bust out the NOD, ASAP!

Semper Fi.

Andyman

[Andyman73]

Update, since I filed the NOD for EED, I got their reply and chose the DRO path.  After more than 2 months of waiting I got another letter in the mail, yesterday.  They are requesting I submit evidence for my NOD.  Since mine is for EED, should I resubmit all evidence I have in regards to all my foot/feet issues? 

Some background info;  Since I had received my C-file back in July, I found an old C&P for my feet, from back in '06.  The exam found several issues with my feet.  But then nothing was decided, for or against.  Then this past summer I filed for SC for my feet, and was awarded 30% for pes cavus with plantar fasciitis bilateral.  This was also found during the 2006 exam.  The only difference being the 2015 exam was found in my favor, and the 2006 exam was left undecided.

Thanks,

Andy